April 2018 – Vol. 20, No. 4 The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, P.A.

April 2018 – Vol. 20, No. 4

The Employer E-Letter:  Labor and Employment Law News 
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.

Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218-722-4766. Please feel free to forward this e-mail or share it with others.  If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.


This Month’s Topics:

  • Employer Mandated Health Exams were Valid
  • Tip Of The Month


Equal Pay for Equal Work

A recent 9th Circuit opinion reminds us that employers are required to pay men and women for substantially the same work under the Equal Pay Act.  The statute does provide employers with four exceptions, including (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) a differential based on any factor other than sex.  In this case, the employer paid a male employee, who was hired after a female doing substantially similar work, at a higher salary based on its policy of looking at setting initial salaries by considering prior salary of an applicant.  The exceptions stated above are considered affirmative defenses, and the court ruled that prior salary cannot be used in order to justify a difference between paying males and females in substantially the same work.  Both the 7th Circuit (Wisconsin) and the 8th Circuit (Minnesota) accept the use of prior salary alone as a “factor other than sex”, but there is now a significant split in the Federal Circuits, and the issue is ripe for an appeal to the U.S. Supreme Court.  Employers across the country should be leery of using prior salary as a justification for a difference between wages for males and females.  As a concurring opinion in Rizo indicates, differences in salary can be evidence of past discrimination and therefore should not be considered.  Rizo v. Yovino, No. 16-15372 (9th Cir. 2018)


Rest Breaks on Account of Health Condition Not Generally Compensable According to DOL Guidance

In its first Opinion Letter since 2009, the Department of Labor’s Wage and Hour Division provided guidance to employers on the question of “whether a non-exempt employee’s 15-minute rest breaks, which were certified by a health care provider as required every hour due to the employee’s serious health condition and thus covered under the FMLA, are compensable time under the FLSA.”  Noting the general rule that the compensability of an employee’s time depends on whether it is spent predominantly for the employer’s or the employee’s benefit, the Opinion Letter stated that short rest breaks up to 20 minutes in length have been generally deemed by the federal courts to benefit the employer because they “promote the efficiency of the employee.”  The Opinion Letter also recognized that there have been circumstances in which short rest breaks primarily benefit the employee, and are therefore not compensable.  The Opinion Letter cited a case out of the Eastern District of Michigan federal court where it was decided that frequent “accommodation breaks” taken by an employee to address back pain were for the benefit of the employee, not the employer, and thus were not compensable.  Spiteri v. AT&T Holdings, Inc., 40 F.Supp. 3d 869 (E.D. Mich. 2014).  Finding that case instructive to the question before the agency, the Opinion Letter suggested that FMLA-protected breaks required every hour due solely to an employee’s health condition are not compensable under the FLSA.  The Opinion Letter noted that this conclusion is consistent with FMLA rules, which do not entitle an employee to take an unlimited number of personal rest breaks during the day and be compensated for all such breaks, as long as they are less than 20 minutes in duration.  See 29 C.F.R. §785.18.  The Opinion Letter cautions employers, however, to ensure that employees who take FMLA-protected breaks like those at issue must receive the same number of compensable rest breaks as their co-workers.  This may render some medically-related rest breaks compensable, while others are not compensable.                                                                                                                                                       

Employer Mandated Health Exams were Valid

The 7th Circuit Court of Appeals recently decided that mental health examinations required by an employer following problematic behavior of an employee were not a violation of the Americans with Disabilities Act (“ADA”). The employee’s behaviors included things such as being argumentative, confrontational, and making a reference to death in an e-mail. The employee’s suit was filed after the fifth examination in which a psychiatrist determined that she was unfit for duty and that her behaviors resulted from paranoia. The Court of Appeals affirmed the decision of the District Court stating that the mandated tests were not a violation of the ADA. The Court reasoned that there was clear evidence that the requests for medical examinations came as a result of the employee being disciplined, the examinations were job related, and they were consistent with business necessity. The general standard for business necessity is if the employer has a reasonable belief, based on objective evidence, that a medical condition will impair an employee’s ability to perform essential job functions, or that the employee will pose a threat due to the medical condition Painter v. Illinois Dept. of Transportation, No. 16-3187 (December 6, 2017).

Narrow Construction Principle Rejected in Cases Involving FLSA Exemptions

The U.S. Supreme Court recently reversed a 9th Circuit Court of Appeals case that held that car service advisors were not exempt from the FLSA overtime requirements.  Justice Clarence Thomas explained the Court’s reasoning in rejecting the narrow construction principle as a useful guidepost for interpreting the FLSA.  “[T]he FLSA gives no textual indication that its exemptions should be construed narrowly, so there is no reason to give them anything other than a fair (rather than a ‘narrow’) interpretation”.  This categorical rejection puts employers in a position to better defend classification decisions going forward, and it is a complete reversal of what was previously followed by all Circuit Courts of Appeal in FLSA cases.  Encino Motor Cars, LLC v. Navarro, et al, No. 16-1362 (April 2, 2018).

Tip of the Month:  
Workplace dress codes serve various important purposes but can also lead to employee claims.  Though there are no federal statutes directly addressing employer-required attire or hygiene restrictions, there are limitations based on anti-discrimination statutes.  For example, employers should ensure their dress codes do not adversely affect one race more than another or create stricter standards for female employees as compared with males.  Employers must also be aware that otherwise neutral and non-discriminatory dress codes may at times have to be relaxed to accommodate a disabled employee or an employee with religious beliefs that conflict with the rules.  These exceptions are limited by considerations of reasonableness and hardship to the employer, but written policies should be written in a way that allows flexibility when required by the law.

Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota.  Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty.  Richard Burns is now of Counsel.

The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice.  The communication and receipt of this information is not intended to create an attorney-client relationship.  Readers should consult with their legal counsel  before taking any action on matters covered in this E‑letter.

To subscribe or unsubscribe to Employer E-Letter, e-mail your request to lml@hanftlaw.com or call Scott Witty at 218.722.4766.

Copyright 2018 by Hanft Fride, P.A.  All rights reserved.  Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802.  Phone 218.722.4766; Fax 218.529.2401.